State v. Lussier

Annotate this Case

State v. Lussier (98-394); 171 Vt. 19; 757 A.2d 1017

[Filed 28-Apr-2000]
[Motion for Reargument in 99-017 Denied 12-Jun-2000]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

Nos. 98-394 & 99-017

State of Vermont Supreme Court

On Appeal from
v.
District Court of Vermont,
Unit No. 3, Caledonia Circuit

Steven R. Lussier, Jr. April Term, 1999

State of Vermont

Robert R. Lussier

Mary Miles Teachout, J. (98-394)
Alan W. Cook, J. (99-017)

Dale O. Gray, Caledonia County State's Attorney, and Alan M. Singer
and Robert Butterfield, Deputy State's Attorneys, St. Johnsbury, for
Plaintiff-Appellee.

David C. Sleigh of Sleigh & Williams, St. Johnsbury, for
Defendants-Appellants.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

JOHNSON, J. Defendants in these two consolidated cases appeal the
civil suspension of their driver's licenses. At issue is whether the
district court in a civil suspension proceeding may consider the
constitutionality of the underlying stop, and, if so, whether the stops in
these two cases were lawful. We hold that a defendant in a civil
suspension proceeding may challenge the reasonableness of the underlying
stop pursuant to 23 V.S.A. § 1205(h)(1), which permits the court to
consider whether the police officer had reasonable grounds to believe that
the defendant was driving while intoxicated. This interpretation of §
1205(h)(1) is consistent with our belief that the exclusionary rule's ban
against the admission of unlawfully obtained evidence should extend to
civil suspension proceedings to protect the core value of privacy

embraced by Chapter I, Article 11 of the Vermont Constitution. Examining
the stops in the two cases before us, we conclude that defendant Steven
Lussier was lawfully stopped for operating a motor vehicle with only one
functioning taillight, but that defendant Robert Lussier was unlawfully
stopped for operating a vehicle with only one functioning rear license
plate light.

There is no dispute as to the facts in either case. Defendant Steven
Lussier was stopped at 2:49 in the morning on June 28, 1998 by a police
officer who observed that his passenger car's right taillight was
inoperable. Upon stopping the vehicle, the officer noticed signs of
intoxication and ultimately processed defendant for driving while
intoxicated (DWI) after he failed to satisfactorily perform field
dexterity tests. Defendant agreed to a breath test, which revealed a
blood-alcohol concentration of .152.

At his civil suspension hearing, defendant argued that because Vermont
statutory law requires only one functional taillight on passenger cars,
the officer had no reasonable basis for stopping him. The district court
rejected this argument, concluding that Vermont law requires that each and
every taillight on a motor vehicle be in good operating condition. On
appeal, defendant renews his argument that there was no reasonable basis
for the stop of his vehicle because Vermont law requires only one
functioning taillight.

In the second case, defendant Robert Lussier was stopped at 1:18 in
the morning on November 29, 1998 by a police officer who observed that one
of the two white lights intended to illuminate his truck's rear license
plate was inoperable. Upon stopping the vehicle, the officer noticed
signs of intoxication and ultimately processed defendant for DWI after he
was unable to perform field dexterity tests. Defendant agreed to a breath
test, which revealed a blood-alcohol concentration of .140.

At the civil suspension hearing, defendant argued that because Vermont
statutory law requires only one light to illuminate the rear license
plate, the officer had no reasonable and articulable basis for stopping
his truck. The district court concluded that the stop was justified by
the inoperable plate light, and that in any event the issue concerning the
validity of the stop

was not one of the limited issues enumerated in § 1205(h) that may be
raised in civil suspension proceedings. On appeal, defendant contends
that there was no reasonable basis for stopping his truck because Vermont
law does not require two functioning rear license plate lights, and his
plate was adequately illuminated.

The parties in both cases requested and received permission to
incorporate into their appeals the briefs in two other appeals pending
before this Court, State v. Nickerson, 98-530 and State v. Rash, 98-531.
The principal issue raised in those appeals is whether the exclusionary
rule's ban against the admission of unlawfully obtained evidence should be
applied in civil suspension hearings.

Before considering whether the stops in the instant cases were lawful,
we must consider whether a defendant in a civil suspension hearing may
challenge the reasonableness of the underlying stop.

Under 23 V.S.A. § 1205(h)(1)-(5), the issues at a final civil
suspension hearing are limited to the following:

(1) whether the law enforcement officer had reasonable
grounds to believe the person was operating, attempting to
operate or in actual physical control of a vehicle in violation
of section 1201 of this title;

(2) whether at the time of the request for the evidentiary
test the officer informed the person of the person's rights and
the consequences of taking and refusing the test . . .;

(3) whether the person refused to permit the test;

(4) whether the test was taken and the test results indicated
that the person's alcohol concentration was 0.08 or more at the
time of operati[on] . . ., whether the testing methods used were
valid and reliable and whether the test results were accurate and
accurately evaluated. . . .;

(5) whether the requirements of section 1202 of this title
[consent to taking of tests to determine blood alcohol content]
were complied with.

According to the State, because the limited issues enumerated in §
1205(h) do not explicitly include whether reasonable grounds existed for
the stop, the Legislature must not have intended to allow defendants in
civil suspension proceedings to challenge the constitutionality of stops.
See State v. Pollander, 167 Vt. 301, 308, 706 A.2d 1359, 1363 (1997)
(Legislature intended to limit issues that may be presented in civil
suspension hearings to those enumerated in statute). In the State's view,
the reasonableness of the officer's belief that the defendant was driving
while intoxicated, see § 1205(h)(1), may be satisfied solely on evidence of
intoxication gathered after the stop - odor of alcohol, watery eyes,
slurred speech, failure to perform dexterity tests, etc. - regardless of
the lawfulness of the stop itself.

We are not persuaded by the State's argument. Our primary duty in
construing a statute is to discern the intent of the Legislature by
examining the language of the entire statute, along with its purpose,
effects, and consequences. See Candido v. Polymers, Inc., 166 Vt. 15, 17,
687 A.2d 476, 478 (1996); State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996). While the Legislature plainly intended to expedite the
adjudication of civil license suspensions, see State v. Strong, 158 Vt.
56, 61, 605 A.2d 510, 513 (1992), it was careful to ensure that all of the
rights related to the taking of a blood or breath sample applied equally
in both criminal and civil DUI proceedings. We find it unlikely that the
Legislature intended to retain these statutorily created rights in civil
suspension proceedings while stripping defendants in those proceedings of
their constitutionally protected right to be free from unreasonable stops.
Rather, we conclude that, in permitting defendants in a civil suspension
proceeding to dispute whether the processing officer had reasonable
grounds to believe that the motorist was driving while intoxicated, the
Legislature assumed that a constitutional stop would be a necessary
predicate to finding "reasonable grounds" for suspicion of DUI. Nothing
in the language of § 1205 or the purpose behind the statute suggests that
the Legislature intended otherwise.

Section 1205(h)(1) permits defendants in civil suspension proceedings
to challenge whether the arresting officer had reasonable grounds to
suspect a DWI violation. When a motor

vehicle stop is based on an officer's suspicion that the driver was
intoxicated, the issue of whether the officer had reasonable grounds to
suspect a DWI violation is logically extended to the question of whether
there was a reasonable basis for the stop. It would make little sense,
however, to allow defendants to challenge the legality of the underlying
stop only in situations when the officer indicated that the stop was based
on a suspicion that there had been a DWI violation. In determining the
legality of a stop, courts do not attempt to divine the arresting officer's
actual subjective motivation for making the stop; rather, they consider
from an objective standpoint whether, given all of the circumstances, the
officer had a reasonable and articulable suspicion of wrongdoing. See
State v. Sutphin, 159 Vt. 9, 11, 614 A.2d 792, 793 (1992). It is
conceivable that officers might stop individuals for minor vehicle
violations based on a suspicion of DUI, perhaps because the individuals
have a prior history of DUI in the community or because of other cir-
cumstances, such as the time of night or the location of the vehicle. (FN1)
The point is that the subjective motivation of the officer is not
the basis for determining the legality of a stop, and thus the issue of
whether a stop was legal should not be excluded from determining whether
the officer had reasonable grounds to suspect a DUI violation, simply
because the stop was

ostensibly made on grounds other that DUI.

Hence, a rational interpretation of § 1205(h)(1) would permit
defendants to challenge the reasonableness of the officer's belief based
on the fact that it was derived from an unlawful stop. The State seeks a
more narrow interpretation, however, which would permit law enforcement
officers to make random stops of vehicles for any or no reason at all in
the hopes of detecting drunk drivers. Indeed, under the State's
interpretation of the statute, roadblocks could be set up without regard
to the carefully considered strictures set forth in State v. Martin, 145
Vt. 562, 571, 496 A.2d 442, 448 (1985) and adopted under Article 11 in
State v. Record, 150 Vt. 84, 88, 90, 548 A.2d 422, 425, 426 (1988).
License suspensions could follow the unlawful police conduct as long as at
any point after the stop the officer formed a reasonable belief that the
defendant was intoxicated. We cannot conceive that the Legislature
intended to insert into the civil suspension system all of the statutory
rights concerning consent to evidentiary tests, see § 1205(h)(5), and at
the same time to dispense with basic constitutional protections against
unreasonable governmental intrusions. Accordingly, we decline the State's
invitation to attribute to the Legislature the intent to sanction
unconstitutional police conduct in the context of civil suspension
proceedings. See Williams v. Ohio Bureau of Motor Vehicles, 610 N.E.2d 1229, 1231 (Ohio Mun. 1992) (in creating civil suspension system,
legislature did not change DWI laws so as to abrogate drivers'
constitutional rights; lack of constitutional stop vitiates right to
request compliance with implied consent law).

We recognize, as Justice Skoglund points out, that in creating the
civil license suspension system ten years ago, the Legislature intended to
fashion a speedy and summary proceeding that would protect the public by
quickly removing potentially dangerous drivers from Vermont highways. See
Pollander, 167 Vt. at 307-08, 706 A.2d at 1363 ; Strong, 158 Vt. at 61, 605 A.2d at 513. But Justice Skoglund's concern that allowing defendants in
civil suspension proceedings to challenge the constitutionality of stops
will undermine the Legislature's intent in this regard appears to be
unfounded. Apparently, in the ten years since the creation of the civil
suspension

system, at least some of the trial courts in such proceedings have been
considering the constitutionality of stops without undermining the system.
See, e.g., State v. Flynn, 164 Vt. 637, 638, 674 A.2d 792, 793 (1996)
(reversing district court's ruling in civil suspension proceeding that
underlying stop was unlawful). Yet, the State is not claiming that undue
delay has resulted in the past from permitting defendants to challenge the
constitutionality of stops in civil suspension proceedings.

Moreover, as noted, while the Legislature sought to avoid the
significant delay that often occurs during the criminal DWI process, it
was also careful to ensure that all of the statutory rights related to the
taking of evidentiary tests applied in both proceedings, and that
defendants could challenge civil suspensions based on issues concerning
their statutory rights. Of all the issues litigated in civil suspension
proceedings, perhaps the easiest and least time consuming is whether the
stop was based on reasonable suspicion of unlawful activity. In most
cases, the State can meet its burden by submitting the investigating
officer's affidavit stating the reasons for the stop.

We also note that the licenses of repeat DWI offenders are suspended
upon notice before the final hearing regardless of what issues are to be
raised, see 23 V.S.A. § 1205(e)(2), and that a final suspension hearing in
any case must occur within forty-two days of the alleged offense absent
good cause or the consent of the defendant, see id. § 1205(h). Thus, we
find no basis for the State's dire warnings of delay that will result from
allowing trial courts in civil suspension proceedings to consider the
lawfulness of the underlying stop.

Relying primarily on State v. Stearns, 159 Vt. 266, 617 A.2d 140
(1992), Justice Skoglund states that our interpretation of § 1205(h)(1)
will effectively preclude the State from relying on an officer's affidavit
in civil suspension proceedings, which will be transformed into full-blown
trials requiring the presence of police officers serving as witnesses.
See Justice Skoglund's dissent, post, at 5-6, 7-8. Justice Skoglund
questions how our holding today comports with the analysis in Stearns.
See id. at 8. Our holding is completely consistent with the analysis in
Stearns.

In Stearns, the pro se defendant prevailed at a civil license
suspension proceeding after the trial court accepted his testimony -
despite the contradictory affidavit of the arresting officer - that the
officer had not given him a fair opportunity to take a breath test. See
159 Vt. at 267, 617 A.2d at 140. The defendant then argued that the State
was collaterally estopped in the criminal DUI proceeding from relitigating
whether he had refused a breath test. See id. at 268, 617 A.2d at 141.
Reversing the trial court, this Court concluded that collateral estoppel
did not apply because the State did not have a full and fair opportunity
in the summary civil suspension proceeding to litigate the issue of
whether the defendant had refused the test. See id. at 272, 617 A.2d at
143. We reasoned as follows:

It is one thing for the State to assume the risk that a defendant's
license will not be suspended because an officer's affidavit, in the
face of defendant's live testimony, does not adequately convince the
court. It is quite another thing if the risk includes the substantial
chance that defendant also will avoid criminal responsibility. As the
courts concluded in Ratliff and Moore, the effect would be that the
State would be forced to try the criminal case, with live witnesses,
in the civil suspension proceeding. Application of issue preclusion
would nullify the summary suspension proceeding that the
Legislature enacted.

Id. at 271-72, 617 A.2d at 143 (emphasis added). Our analysis relied
heavily on the Oregon Supreme Court's reasoning reaching the same holding
- no collateral estoppel - in a case in which the hearing officer had
entered judgment for the defendant in a civil suspension proceeding after
concluding that the underlying police stop was not supported by reasonable
suspicion. See id. at 269, 617 A.2d at 141-42 (discussing and quoting
extensively from State v. Ratliff, 744 P.2d 247, 250 (Or. 1987)).

Justice Skoglund suggests that our holding is inconsistent with the
analysis in Stearns because it precludes the State from relying on the
arresting officer's affidavit in civil suspension proceedings, and instead
compels the State to try its entire criminal case, with live witnesses, in
what was supposed to be a summary proceeding. See Justice Skoglund's
dissent, post, at 5-6, 7-8. Such concerns apply equally to any issue,
including any of those explicitly listed in § 1205(h), that a defendant
might choose to raise in a civil suspension proceeding. Indeed, the issue
that the defendant prevailed on in Stearns, notwithstanding the arresting
officer's affidavit, was whether he had refused to take a breath

test - an issue that § 1205(h)(3) explicitly allows to be raised in civil
license suspension proceedings.

Yet, we did not suggest in Stearns that allowing the defendant to
counter the State's affidavit with live testimony regarding that issue, or
any other issue, would undermine the Legislature's goal of expediting
civil suspension proceedings. To the contrary, we stated that if the
State chooses to rely solely on the arresting officer's affidavit, it must
assume the risk that the defendant's license might not be suspended
because of the defendant's live testimony challenging that affidavit;
however, we concluded that the State should not have to risk losing the
criminal case because of how the issue was presented in the summary civil
suspension proceeding. See Stearns, 159 Vt. at 271-72, 617 A.2d at 143.
This reasoning is no less true when the defendant challenges the
underlying stop in the civil suspension proceeding, as was the situation in
Ratliff, the case upon which the Stearns analysis is based. In short, our
law is settled regarding crossover estoppel in DUI civil and criminal
proceedings, see Pollander, 167 Vt. at 304-07, 706 A.2d at 1360-62, and
there is no evidence that the summary adjudication of civil license
suspensions has been undermined, even though Vermont trial courts have in
the past allowed defendants in such proceedings to challenge the
constitutionality of the underlying stops.

Our conclusion that a constitutional stop is a necessary predicate for
a finding that an officer had "reasonable grounds" to believe that a
person was driving while intoxicated is supported by a significant number
of cases in other jurisdictions, as discussed below. In many of those
cases, courts construing statutes very similar to § 1205(h) have held that
a lawful arrest, including a constitutional stop, is a prerequisite for an
officer to have reasonable grounds to support a license suspension.
Justice Skoglund attempts to distinguish some of the cases by pointing out
that the statutes interpreted therein permitted the defendants to
challenge the suspension of their licenses on the grounds that they were
not "under arrest" when they were asked to submit to an evidentiary test.
Justice Skoglund's dissent, post, at 6-7. Rather than undermine the
support that these cases offer for our holding, the distinction only
emphasizes the need to construe § 1205(h)(1) broadly to protect Vermont
motorists from unwarranted

governmental intrusions that are not based on articulable suspicion, let
alone probable cause. Cf. Fishbein v. Kozlowski, 743 A.2d 1110, 1117
(Conn. 1999) (statute's probable-cause-to-arrest requirement, coupled with
provision for administrative hearing, afforded driver all constitutional
protection to which he was entitled).

Here are some examples of cases that support our holding. In Watford
v. Bureau of Motor Vehicles, 674 N.E.2d 776, 778 (Ohio Ct. App. 1996), the
court examined a statute that permitted defendants in civil suspension
proceedings to contest "'[w]hether the law enforcement officer had
reasonable ground to believe the arrested person was operating a vehicle .
. . under the influence of alcohol . . . and whether the arrested person
was in fact placed under arrest.'" (emphasis in opinion). The court held
that "a lawful arrest, including a constitutional stop," was required
before a refusal to take a test could trigger a license suspension. Id.

In People v. Krueger, 567 N.E.2d 717, 721-22 (Ill. App. Ct. 1991), the
court also addressed the scope of suspension hearings under a statute
similar to ours. Refusing to construe the statute in a manner that would
authorize unconstitutional arrests or searches and allow license
suspensions to be based on the fruits of unconstitutional police conduct,
the court concluded that the statute implicitly required that arrests
triggering license suspensions be lawful. See id. at 722; see also Gikas
v. Zolin, 863 P.2d 745, 749 (Cal. 1993) (en banc) (license suspension
requires lawful arrest based on constitutional stop).

Similarly, in Pooler v. MVD, 755 P.2d 701, 702-03 (Or. 1988) (en
banc), the Oregon Supreme Court concluded that because the legislature
implicitly intended to require valid DWI arrests, the scope of
administrative suspension hearings permitted defendants to raise issues
concerning the validity of the underlying stops. See id. Like the other
courts, the Oregon court expressed concern that a contrary holding would
allow police to stop drivers at random without reasonable suspicion in the
hopes of identifying the occasional intoxicated motorist. See id. at 703.
The court declined to attribute to the legislature an intent to condone
such unconstitutional procedures. See id.

Additionally, in Brownsberger v. MVD, 460 N.W.2d 449, 450 (Iowa 1990),
the Iowa Supreme Court examined a statute permitting motorists to reopen
license revocation proceedings upon a finding in the later criminal
proceeding that the arresting officer did not have reasonable grounds to
believe that the motorist was driving while intoxicated. Rejecting the
State's argument that the district court erred by equating a finding of
"no reasonable grounds to stop" with the more general statutorily mandated
finding of "no reasonable grounds to believe that the motorist had been
driving while intoxicated," the court concluded that the statute permitted
the reopening of license revocation cases when the criminal court found no
reasonable basis for the stop. See id. at 450-51.

Other courts construing statutes similar to § 1205(h)(1) have refused
to allow defendants in civil suspension proceedings to challenge the
lawfulness of the investigatory stop. See Fishbein, 743 A.2d at 1116-17
(5-2 decision); Powell v. Secretary of State, 614 A.2d 1303, 1305 (Me.
1992); Beavers v. Department of Motor Vehicles, 851 P.2d 432, 434-35 (Nev.
1993) (per curiam); Department of Transp. v. Wysocki, 535 A.2d 77, 79-80
(Pa. 1987) (5-1 decision). For the most part, these decisions provide
little rationale to support their construction of the statutes in question
- other than emphasizing that drunk driving laws are intended to remove
intoxicated drivers from the highways in an expedited fashion - and thus
we do not find them persuasive. Rather, while we are mindful of the
important public purpose of keeping intoxicated drivers off of our
highways, we do not believe that the Legislature intended § 1205(h) to
permit license suspensions to be based on unconstitutional stops. Cf.
Pollander, 167 Vt. at 308, 706 A.2d at 1363 (because necessity defense
emanates from common law rather than constitutional imperative, Legislature
is free to determine whether defense is issue to be considered in civil
suspension hearing).

Relying primarily on State v. District Court, 129 Vt. 212, 274 A.2d 685 (1971), Justice Skoglund states that it has been this Court's
"understanding" for nearly thirty years that "reasonable grounds" means
"that the officer must have formed a reasonable basis to request a

blood alcohol test from the person under investigation." See Justice
Skoglund's dissent, post, at 3-4. By construing § 1205(h)(1) to mean
something other than what it explicitly states, Justice Skoglund does
precisely what she suggests that this Court is doing - reading into the
statute language that is not there. See id. at 4. More importantly, the
issue before this Court is one of first impression, as recognized by the
parties. This Court has never implied, let alone held, that in allowing
defendants to challenge whether the law enforcement officer had "reasonable
grounds to believe the person was operating . . . a vehicle in violation
of section 1201," the Legislature intended to preclude defendants from
challenging the reasonableness of the stop that led to DUI processing and
prosecution. If anything, we have suggested the contrary by recognizing
that "reasonableness hearings, although not criminal, seek a parallel sort
of protection for operators against an arbitrary exercise of . . . police
power." See District Court, 129 Vt. at 215, 274 A.2d at 686.

Our construction of § 1205(h)(1) is consistent with this Court's view
of the scope of the exclusionary rule. Evidence obtained as the result of
constitutional violations by law enforcement officers may not be admitted
at trial as a matter of state law because doing so "eviscerates our most
sacred rights, impinges on individual privacy, perverts our judicial
process, distorts any notion of fairness, and encourages official
misconduct." State v. Badger, 141 Vt. 430, 452-53, 450 A.2d 336, 349
(1982). In determining the scope of the exclusionary rule, we have not
rejected outright a cost-benefit analysis that balances the deterrent
effect to be achieved by excluding unlawfully obtained evidence against
the cost of excluding such evidence, but we have emphasized that the focus
of any such analysis should be on the individual constitutional rights at
stake. See State v. Oakes, 157 Vt. 171, 174, 598 A.2d 119, 121-22 (1991).
Indeed, any empirical assessment indicating that the resulting costs and
benefits weigh in favor of admitting unlawfully obtained evidence must be
so persuasive as to negate the important rights at stake. See id. at
174-75, 598 A.2d at 122; cf. State v. Robinson, 165 Vt. 351, 353-55, 683 A.2d 1005, 1007-08 (1996) (because of unique nature of summary contempt,
policies behind exclusionary

rule do not require suppression of evidence obtained when contemnor is
searched in preparation of incarceration following finding of criminal
contempt).

Hence, in Oakes, we declined to adopt a "good faith" exception to the
introduction of unlawfully obtained evidence in criminal trials because we
were unpersuaded by the cost-benefit analysis that the United States
Supreme Court followed in United States v. Leon, 468 U.S. 897 (1984). See
157 Vt. at 183, 598 A.2d at 126. Since then, the Supreme Court has
continued to narrow the scope of the federal exclusionary rule based on
questionable reasoning that has been subject to much criticism. See INS
v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984) (exclusionary rule is not
applicable in deportation proceedings); Pennsylvania Bd. of Probation v.
Scott, 524 U.S. 357, 364 (1998) (exclusionary rule is not applicable in
parole revocation hearings); see also 1 W. LaFave, Search and Seizure §
1.7(e), at 206-07 (3d ed. 1996) (discussing "extreme and fundamentally
unsound" cost-benefit analysis utilized in INS v. Lopez-Mendoza).

While the Supreme Court continues to restrict the scope of the
exclusionary rule, courts in other jurisdictions are divided on whether
the exclusionary rule is applicable in civil license suspension
proceedings. See Annotation, Admissibility, in Motor Vehicle License
Suspension Proceedings, of Evidence Obtained by Unlawful Search and
Seizure, 23 A.L.R.5th 108, 123-29 (1994); LaFave, supra, at 199-200.
Those courts declaring the exclusionary rule inapplicable in such
proceedings reason that (1) applying the rule to summary license suspension
proceedings would unnecessarily and unduly complicate those proceedings;
(2) public interest demands that drunk drivers be removed from the
highways; and (3) because the unlawfully obtained evidence has been or
will be excluded from related criminal proceedings, there is little
additional deterrent effect on police conduct that would result from
excluding the evidence in the suspension proceedings. See Riche v.
Director of Revenue, 987 S.W.2d 331, 334-35 (Mo. 1999); Powell, 614 A.2d
at 1306-07; Holte v. State Highway Comm'r, 436 N.W.2d 250, 252 (N.D. 1989).

We are not persuaded that any of these reasons compel the introduction
of unlawfully obtained evidence in civil suspension proceedings. As noted
above, the State has not provided

us with either empirical evidence or sound argument suggesting that
application of the exclusionary rule would seriously undermine the
Legislature's intent to create a speedy and summary civil suspension
system.

As for the second reason, we recognize the importance of removing
intoxicated drivers from Vermont's highways, just as we recognize the
importance of bringing to justice those persons that violate our criminal
laws. But the public's interest in having strict police control over
persons driving on our highways may not be satisfied at the expense of our
constitutional right to be free from unbridled government interference in
our lives, see Holland v. Parker, 354 F. Supp. 196, 199 (D. S.D. 1973),
particularly considering that the State offers no empirical evidence
suggesting that applying the exclusionary rule in civil suspension
proceedings will have a deleterious effect on preventing the carnage
caused by drunk drivers. If the State were permitted to obtain license
suspensions based on evidence resulting from unconstitutional stops, the
right of individuals to be free from unreasonable governmental intrusion
into their private affairs, as guaranteed under Article 11, would be
seriously compromised.

Third, in our view, the exclusionary rule is just as necessary to
deter unlawful police conduct in the context of civil suspension
proceedings as it is in related criminal DWI proceedings. Generally, in
both the criminal and civil components of DWI cases the State presents the
same evidence from the same stop made by the same police officer.
Further, in both the civil and criminal cases, license revocation is often
the most long-lasting and significant sanction imposed on the defendants.
See 23 V.S.A. §§ 1205(a), (m), 1206, 1208, 1210; Whisenhunt v. Department
of Public Safety, 746 P.2d 1298, 1299 (Alaska 1987). The nationwide
campaign against drunk driving has taught us, if nothing else, that the
threat of criminal prosecution has little impact on keeping problem
drinkers off of our highways. As a result, the focus of state legislatures
and law enforcement agencies has been on removing intoxicated motorists
from highways by suspending their licenses or otherwise preventing them
from driving. Because the primary objective of DUI laws and law
enforcement is to remove

intoxicated drivers from our highways, the deterrent effect of the
exclusionary rule would be weakened significantly if it were not applied
in civil suspension proceedings. See Whisenhunt, 746 P.2d at 1299.

As noted, if the exclusionary rule were not applied in civil
suspension proceedings, law enforcement officers could make investigatory
stops based on hunches or stereotypical beliefs, or for any or no reason
whatsoever, knowing that even if any evidence obtained from the stop were
to be suppressed in criminal proceedings, license suspensions could still
follow. Given the significance of obtaining license suspensions, allowing
unlawfully obtained evidence to be admitted in civil suspension
proceedings could encourage disregard for the constitutional limits of a
legal stop. See LaFave, supra, at 202-03 (highly relevant factors in
determining whether to apply exclusionary rule in quasi-criminal
proceedings are magnitude of consequences for individual involved and
extent to which non-exclusion would encourage unlawful searches and
seizures); cf. Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700-02 (1965)
(exclusionary rule is applicable in forfeiture proceedings because they
are quasi-criminal in character and can result in punishment even greater
than in underlying criminal case).

In sum, notwithstanding that the license suspension system is civil in
nature and does not demand all of the procedural safeguards required in
criminal proceedings, see State v. O'Brien, 158 Vt. 275, 277, 609 A.2d 981, 982 (1992), we conclude that it is appropriate to apply the
exclusionary rule in civil license suspension proceedings to protect the
core value of privacy embraced in Article 11, to promote the public's
trust in the judicial system, and to assure that unlawful police conduct
is not encouraged. See Lopez-Mendoza, 468 U.S. at 1060-61 (Marshall, J.,
dissenting) (exclusionary rule enables "judiciary to avoid taint of
partnership in official lawlessness" and assures public that "government
will not profit from lawless behavior").

The essence of the Chief Justice's remarks in his dissent is that the
danger of drunk driving supercedes the right of Vermonters to be free from
governmental intrusion into their private affairs. The Chief Justice
accuses this Court of having done a "great disservice" to law

enforcement officials by concluding that the potential risk of unlawful
police conduct exceeds the actual risk of drunk driving. See post, at 7.
Nowhere in our decision do we make such a conclusion. Our holding has
nothing to do with the likelihood of whether police officers will act in
good faith or how often they will make illegal stops. Rather, we seek to
provide an enforcement mechanism for constitutional rights that protect
citizens against unlawful government intrusions. This Court's enforcement
of those rights does no more disservice to law enforcement officers than
the existence of the rights themselves. Indeed, assuming the Chief
Justice's faith in law enforcement officials is well-founded, our holding
will have no impact whatsoever on the prosecution of DUI civil
suspensions.

It is the duty of this Court to see that constitutional rights are
upheld. By precluding the introduction of evidence obtained as the result
of constitutional violations, the exclusionary rule protects those "most
sacred rights." See Badger, 141 Vt. at 452-53, 450 A.2d at 349. We
emphasized in Oakes that the focus of any cost-benefit analysis concerning
application of the exclusionary rule should be on the individual
constitutional rights at stake. See 157 Vt. at 174, 598 A.2d at 122.
Yet, even though there is not the slightest indication that allowing
defendants in DUI civil proceedings to challenge the constitutionality of
police stops would have any impact on the proliferation of drunk drivers
on our highways, the Chief Justice would hold that the risk of returning
intoxicated drivers to the road outweighs any marginal benefits that result
from the suppression of relevant and reliable evidence of intoxication in
a civil suspension proceeding. We believe that there is more than
marginal benefit in upholding the important constitutional right at stake
here - the right of citizens to be free from unwarranted governmental
intrusion into their private affairs. (FN2)

III.

Having determined that defendants in civil license suspension
proceedings may challenge the constitutionality of the underlying stops,
we now examine the bases for the investigatory stops that occurred in the
two cases before us. As noted, the law is well-settled that police may
stop a vehicle and briefly detain its occupants to investigate a
reasonable and articulable suspicion that a motor vehicle violation is
taking place. See Sutphin, 159 Vt. at 11-12, 614 A.2d at 793-94; State v.
Boardman, 148 Vt. 229, 231, 531 A.2d 599, 601 (1987). Here, both stops
resulted from what the officers believed to be motor vehicle violations
pertaining to the proper operation of taillights.

There are four relevant statutes. The first, 23 V.S.A. § 1221,
provides that a motor vehicle operated on a highway "shall be in good
mechanical condition and shall be properly equipped." The second, 23
V.S.A. § 4(37), refers to "tail lamps" in defining the terms "standard
equipment" and "properly equipped." The third, 23 V.S.A. § 1243(a),
provides that a motor vehicle

shall also be equipped with at least two lighted head lamps of
substantially the same intensity and with reflectors and lenses of
a design approved by the commissioner of motor vehicles, and with
a lighted tail or rear lamp of a design so approved. A
motorcycle . . . [shall be] equipped with at least one lighted
head lamp and at least one lighted tail or rear lamp . . . . A
side car attached to such motorcycle . . . shall be equipped with
a light on the right side of such side car visible from the front
thereof.

The fourth, 23 V.S.A. § 1248, provides that

A person shall not use on any motor vehicle a rear lamp, unless
such lamp has been approved by the commissioner of motor
vehicles, nor unless it shows a clear red light visible from the
rear, and throws a clear white light over all parts of the rear
number plate on such vehicle in such a manner that all numerals,
letters and marks on such plate are clearly visible and legible
for at least fifty feet from the rear of such vehicle.

In the case of defendant Steven Lussier, the officer stopped him
because one of his passenger car's two taillights was not functioning.
Focusing on the fact that §§ 1243 and 1248 refer to "a" taillight or rear
lamp, defendant argues that the stop was unlawful because Vermont law
requires only one functioning taillight.

We find no merit to this argument. Taillights are standard equipment
designed and intended to illuminate the rear corners of motor vehicles
automatically upon the simultaneous illumination of the vehicle's
headlights and upon application of the brake pedal. Taillights are part
of the standard safety lighting equipment regularly installed by the
manufacturer on all passenger vehicles to ensure that the corners of the
vehicles are safely illuminated at night. Nothing in the above-quoted
statutes negates these obvious facts, notwithstanding the Legislature's use
of the word "a" in §§ 1243 and 1248. See § 4(37) (employing plural "tail
lamps" in defining terms "standard equipment" and "properly equipped").

Section 1243 requires "at least two head lamps of substantially the
same intensity" for motor vehicles, but requires only "at least one
lighted head lamp and at least one lighted tail lamp" for motorcycles or
mopeds. Rather than using the phrase "at least ___" to designate the
number of taillights required on motor vehicles, the section refers to "a"
lighted tail or rear lamp of a design approved by the commissioner. Thus,
when referring to taillights on motor vehicles, § 1243 focuses exclusively
on design guidelines, not the required number of such lights.

Section 1243 requires that light designs, including taillight designs,
be of a type approved by the commissioner of motor vehicles. Department
of Motor Vehicle regulations state that "all lamps or lighting devices
mounted on the exterior of a motor vehicle must be of a type approved by
the commissioner of motor vehicles, or must meet the standards prescribed
in 49 CFR 571.108." 8 Code of Vermont Rules 14 050 022-78. There are no
specific designs approved by the commissioner under the rules, but, not
surprisingly, the cited federal regulations require two red taillamps on
the rear of passenger cars, one on each side of the vertical centerline at
the same height and as far apart as practicable. See 49 C.F.R. § 571.108,
Tables I-IV, at 300-03 (1998).

Section § 1243 may not have been artfully drafted, but its use of the
indefinite article, in and of itself, does not demonstrate that the
Legislature intended to require motor vehicles to display only one
taillight. See Craw v. District Court, 150 Vt. 114, 119, 549 A.2d 1065, 1069 (1988) (presumption obtains against statutory construction that would
lead to absurd results); In re A.C., 144 Vt. 37, 42, 470 A.2d 1191, 1194
(1984) (statutes are entitled to reasonable construction, but it is
essential that interpretation not be such that will render statute
ineffective or lead to irrational consequences).

As with § 1243, § 1248 is not intended to designate the number of
taillights required on a motor vehicle, but rather to indicate how such
lights should function. Nothing in that section, appropriately named
"taillights," suggests that a passenger vehicle need only have one
functioning taillight. Because defendant's passenger vehicle had only one
functioning taillight and thus was not properly equipped, the arresting
officer had a reasonable and articulable basis for stopping the vehicle to
issue a citation or merely inform the operator of the problem.

Our analysis in the second case is the same, but we reach the opposite
conclusion. According to the police affidavit in that case, defendant
Robert Lussier was stopped because one of the two white lights that was
supposed to illuminate his truck's rear license plate was not functioning.
Under § 1248, a rear lamp must throw a clear white light over all parts of
the rear license plate so that all of the plate's numbers and letters are
clearly visible from at least fifty feet. Here, the State presented no
evidence that the numerals or letters on defendant's rear plate were not
illuminated to the degree required by § 1248. Nor does the State dispute
defendant's contentions that he had one functioning rear license plate
light that illuminated the plate to the degree required by the statute.

Examining the federal regulations under our earlier analysis, we find
that they require passenger vehicles to display only one rear white
license plate lamp to illuminate the plate from the top or sides. See 49
C.F.R. § 571.108, Tables I-IV, at 300-03. Because the undisputed

evidence was that the rear license plate on defendant's vehicle was
properly illuminated, the State has failed to demonstrate a reasonable and
articulable basis for the stop.

The judgment in the case of Steven Lussier is affirmed; the judgment
in the case of Robert Lussier is reversed.

FOR THE COURT:

________________________________________
Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. The cases before us involve two brothers who both had prior DWI
violations in the small community in which they lived, and who were both
stopped in the wee hours of the morning for relatively minor motor vehicle
violations. Of course, we cannot know the actual motivation of the
arresting officers, and we do not mean to suggest that their motivation in
these cases was other than that stated in their affidavits. We merely
point out that the underlying motivation of the officer cannot be known,
and therefore is not the focus of the court's inquiry into whether the
stop was legal.

The Chief Justice states that since the defendants in the instant
cases each had a BAC exceeding .08 at the time that they were stopped,
"one would have to suspend the laws of probability to believe - as the
majority does - that Vermont law enforcement is making investigatory stops
of drivers `for any or no reason whatsoever.'" Chief Justice Amestoy's
dissent, post, at 7. We fail to grasp the logic of this statement. The
fact that the defendants turned out to have a BAC exceeding .08 tells us
absolutely nothing about the basis of the stops involved or whether law
enforcement officers in Vermont make unlawful stops on occasion. More
importantly, we make no judgment as to the extent Vermont law enforcement
officers make unlawful stops; rather, we decline to construe Vermont law
in a manner that would strip Vermonters of their constitutional right to
be free from unwarranted governmental intrusion into their private
affairs. See State v. Savva, 159 Vt. 75, 86, 616 A.2d 774, 780 (1991)
(Article 11 protects everyone, particularly law-abiding citizens).

FN2. Apparently, in the Chief Justice's view, allowing police to
briefly detain and question motorists for any or no reason at all would
not be an affront to the constitutional privacy rights of Vermonters
because investigatory stops are not as intrusive as searches or seizures.
See Chief Justice Amestoy's dissent, post, at 5-6. This view ignores the
reality that searches and seizures often begin with an investigatory stop.
More importantly, both the Vermont Constitution and the United States
Constitution require that police have, at minimum, a reasonable and
articulable suspicion of wrongdoing before making even a brief,
investigatory stop. See State v. Siergiey, 155 Vt. 78, 80-81, 582 A.2d at
121 (1990).

------------------------------------------------------------------------------
Dissenting

Nos. 98-394 & 99-017

State of Vermont Supreme Court

On Appeal from
v.
District Court of Vermont,
Unit No. 3, Caledonia Circuit

Steven R. Lussier, Jr. April Term, 1999

State of Vermont

Robert R. Lussier

Mary Miles Teachout, J. (98-394)
Alan W. Cook, J. (99-017)

Dale O. Gray, Caledonia County State's Attorney, and Alan M. Singer
and Robert Butterfield, Deputy State's Attorneys, St. Johnsbury, for
Plaintiff-Appellee.

David C. Sleigh of Sleigh & Williams, St. Johnsbury, for
Defendants-Appellants.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

AMESTOY, C.J., dissenting. Contrary to the conclusion of the
majority, I believe the Vermont General Assembly could reasonably exclude
from consideration in a civil license suspension hearing a defendant's
challenge to the underlying motor-vehicle stop, and did so in the explicit
language of 23 V.S.A. § 1205(h)(1). I also believe the majority errs in
deciding that application of the exclusionary rule is necessary to deter
unlawful police conduct in the context of civil suspension proceedings. I
therefore respectfully dissent.

As the majority correctly observes, the issues at a final civil
license suspension hearing "shall be limited" to five. 23 V.S.A. §
1205(h) (emphasis added). The first of these is "whether the law
enforcement officer had reasonable grounds to believe the person was
operating,

attempting to operate or in actual physical control of a vehicle in
violation of section 1201 of this title." Id. § 1205(h)(1). Section 1201
sets forth the prohibition against operating, attempting to operate, or
physically controlling a motor vehicle while under the influence of alcohol
or other drugs.

As we recently explained in State v. Pollander, 167 Vt. 301, 308, 707 A.2d 1359, 1363 (1997), "[t]he plain language of 23 V.S.A. § 1205(g) (FN1)
indicates the Legislature's intent to limit the issues that may be
presented at a civil suspension hearing to those enumerated in the
statute." (emphasis added). We noted in this regard that the summary
suspension system was created for the legitimate purpose of "protecting
public safety by quickly removing 'potentially dangerous drivers from the
road.'" Id. at 307-308, 707 A.2d at 1363 (quoting State v. Strong, 158 Vt.
56, 61, 605 A.2d 510, 513 (1992)). Thus, limiting the cognizable issues
at a civil suspension hearing to those specifically enumerated "serves the
goals of the statute by minimizing procedural delay." Id. at 309, 707 A.2d
at 1363. Accordingly, we held in Pollander that the defendant's attempted
assertion of the necessity defense was barred by the plain language of §
1205(h), and that no further analysis of legislative intent was necessary
or proper. See id.

Defendants here, as in Pollander, raised a defense in a civil
suspension proceeding that was not among those enumerated in § 1205(h).
They claimed in each case that the arresting officer had no reasonable and
articulable suspicion that a motor vehicle violation was taking place, and
hence no valid basis for the stop. See State v. Sutphin, 159 Vt. 9, 11,
614 A.2d 792, 793 (1992). Notwithstanding the absence of this issue among
those set forth in § 1205(h), the majority concludes that defendants were
entitled to assert the claim because "the Legislature assumed that a
constitutional stop would be a necessary predicate" to finding that the
arresting officer had reasonable grounds to believe that the defendant was
driving while intoxicated." Ante, at 4 (emphasis added).

As ably articulated in the Justice Skoglund's dissenting opinion, the
majority's conclusion

does not withstand analysis. Nothing on the face of the statute or
logically implicit in the text supports an assumption that the Legislature
considered a legal stop to be a "necessary predicate" to a reasonable
belief that a person was driving under the influence. The issue that
defendants attempted to raise was whether the arresting officer had a
reasonable and articulable basis to stop them for motor vehicle
violations. This is an entirely different question from whether the
officers had reasonable grounds to believe that defendants were operating
a vehicle in violation of § 1201, i.e., while under the influence of
alcohol. The former is not logically subsumed within the latter.

The majority's construction of § 1205(h)(1) strains logic and reason.
A plain reading of the statute would limit the cognizable issue in these
cases to whether the officers had reasonable grounds, at the time they
requested the blood alcohol tests, to believe that defendants had been
driving or in actual physical control of a vehicle while under the
influence of alcohol. And the only facts logically relevant to this issue
occurred after the motor vehicle stops, when the officers observed signs
of intoxication in both drivers. Expanding the scope of a suspension
hearing beyond these circumstances to include claims relating to the
initial motor-vehicle stop adds a new category to § 1205(h) which is
neither logically implied nor clearly necessary to its effective
implementation. See State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946
(1996) (Court must not "read into a statute something which is not there
unless it is necessary to make the statute effective"). Indeed, a number
of other courts have so concluded, interpreting similar or identical
statutes to hold that the validity of the underlying motor vehicle stop
lies outside the scope of issues to be determined in a civil suspension
proceeding. See, e.g., Powell v. Secretary of State, 614 A.2d 1303,
1305-1306 (Me. 1992); Beavers v. Department of Motor Vehicles, 851 P.2d 432, 434-35 (Nev. 1993); Commonwealth v. Wysocki, 535 A.2d 77, 79 (Pa.
1987).

Nor, apart from the statutory language, is there any overriding
constitutional imperative to conclude that the Legislature must have
"assumed" that a valid motor vehicle stop was a necessary predicate to a
finding that the officer had reasonable grounds to believe the person was
DUI. Although we have reserved the question whether due process rights may
trump the statutory

limitations of § 1205(h), see Pollander, 167 Vt. at 307 n.4, 707 A.2d at
1362 n.4, we have generally held that the exclusion of unlawfully seized
evidence is not a personal constitutional right, but a judicially created
remedy. See State v. Robinson, 165 Vt. 351, 354, 683 A.2d 1005, 1007
(1996); see also Stone v. Powell, 428 U.S. 465, 486 (1976); but cf. State
v. Oakes, 157 Vt. 171, 174, 598 A.2d 119, 121 (1991). Moreover, the
United States Supreme Court has never seen fit to apply the exclusionary
rule in a civil proceeding, nor -- until today -- has this Court. See
United States v. Janis, 428 U.S. 433, 447 (1976) (noting that Supreme Court
"never has applied [exclusionary rule] to exclude evidence from a civil
proceeding, federal or state" and refusing to extend rule to civil tax
assessment proceeding); Immigration & Naturalization Serv. v.
Lopez-Mendoza, 468 U.S. 1032, 1051 (1984) (declining to extend exclusionary
rule to federal deportation proceeding); see also United States v.
Calandra, 414 U.S. 338, 351-52 (1974) (holding exclusionary rule
inapplicable in grand jury proceeding). Recognizing that the exclusionary
rule is designed primarily to deter unlawful police conduct, the Supreme
Court has regularly applied a cost-benefit analysis in its decisions,
balancing the potential deterrent effect of excluding unlawfully seized
but reliable evidence against the resulting costs to societal interests.
See Lopez-Mendoza, 468 U.S. at 1041. This Court has applied a similar
test, while emphasizing the importance of individual rights and liberties
in any cost-benefit equation. See Oakes, 157 Vt. at 174, 598 A.2d at 121.

Although this Court has not previously applied such a cost-benefits
analysis in the civil suspension context, other state courts have
considered the issue. As the majority notes, these decisions are divided,
with a significant number determining that the societal costs of excluding
reliable and relevant evidence that licensed operators have driven
intoxicated far outweigh the incremental deterrent effect of applying the
exclusionary rule. See, e.g, Fishbein v. Kozlowski, 743 A.2d 1110,
1118-1119 (Conn. 1999); Westendorf v. Iowa Dept. of Transp., 400 N.W.2d 553, 557 (Iowa 1987); Powell, 614 A.2d at 1306-1307; Riche v. Director of
Revenue, 987 S.W.2d 331, 334-35 (Mo. 1999); Holte v. State Highway Com'r,
436 N.W.2d 250, 252 (N.D.

1989). The reasoning of the courts in these decisions is persuasive. They
conclude that the imposition of an exclusionary sanction in a civil
suspension proceeding adds only marginally to its deterrent effect in the
related criminal proceeding, while its costs in terms of public safety are
substantial. See Fishbein, 743 A.2d at 1118-1119; Westendorf, 400 N.W.2d
at 557; Riche, 987 S.W.2d at 335; Powell, 614 A.2d at 1307; Holte, 436 N.W.2d at 252. As the Maine Supreme Court succinctly explained:

Because the evidence has already been excluded from the criminal
proceeding, there is little additional deterrent effect on police
conduct by preventing consideration of the evidence by the hearing
examiner. The costs to society resulting from excluding the
evidence, on the other hand, would be substantial. The purpose of
administrative license suspensions is to protect the public.
Because of the great danger posed by persons operating motor
vehicles while intoxicated, it is very much in the public
interest that such persons be removed from our highways.

Powell, 614 A.2d at 1306-1307 (citation omitted).

Notwithstanding these sound and well-reasoned decisions from other
states, the majority concludes that application of the exclusionary rule
in the civil suspension context is "appropriate" for three reasons: (1)
"to protect the core value of privacy" under the Vermont Constitution; (2)
"to promote the public's trust in the judicial system;" and (3) "to assure
that unlawful police conduct is not encouraged." Ante, at 15. I do not
believe these reasons withstand scrutiny.

First, the majority notes that any cost-benefit analysis must focus on
the constitutional right at stake, suggesting that the "core value of
privacy" and "'sacred rights'" at issue here far outweigh any
countervailing public interest. Ante, at 16 (quoting State v. Badger, 141
Vt. 430, 452-53, 450 A.2d 336, 349 (1982)). Despite the rhetoric, the
majority fails to focus on the specific interest at issue. We have
repeatedly observed that privacy is a fluid concept, contingent upon the
specific circumstances presented. Its scope must be determined by the
"reasonable expectation of privacy in the affairs or possessions intruded
upon." State v. Morris, 165 Vt. 111, 120, 680 A.2d 90, 96 (1996). The
"intrusion" in this, as in most civil suspension proceedings, consists of
an ordinary traffic stop, "a temporary and brief detention that is exposed
to public

view." State v. Zumbo, 157 Vt. 589, 592, 601 A.2d 986, 988 (1991).
Defendants here were briefly detained and questioned. Containers from
inside their vehicles were not searched without a warrant, cf. State v.
Savva, 159 Vt. 75, 86-87, 616 A.2d 774, 780-81 (1991); possessions were
not seized, nor confessions obtained, pursuant to coercive police
questioning, cf. Badger, 141 Vt. at 440-43, 450 A.2d at 342-44; residences
were not searched based on warrants lacking probable cause, cf. Oakes, 157
Vt. at 172-73, 598 A.2d at 120. The degree of police intrusion here did
not begin to approach the level in these and other decisions in which this
Court has justifiably excluded illegally obtained evidence. Thus, while
automobile drivers may assuredly assert the exclusionary rule in a
criminal action, where substantial liberty interests are at stake,
withholding that defense in a civil suspension proceeding simply does not,
as the majority claims, implicate "the core value of privacy" embraced by
our Constitution. Ante, at 15.

This conclusion is in no way altered when one considers "the public's
trust in the judicial system," the majority's second ostensible reason for
holding the exclusionary rule to be "appropriate" in this context. Ante,
at 15. Recognizing that such considerations are purely speculative, I
would nevertheless dispute the conclusion that reading the exclusionary
rule into a statute where it does not appear in the text, rejecting the
considered holdings of other states that have declined similar invitations
to judicial legislation, excluding otherwise reliable evidence of
intoxicated driving, and allowing inebriated drivers to return to the
public highways with their licenses intact, is the way to inspire public
trust in our judicial system. This Court has in the past recognized "the
serious threat posed to public safety by the frequency with which
individuals, while under the influence of intoxicating liquor, continue to
operate motor vehicles on the public highways." State v. Martin, 145 Vt.
562, 568, 496 A.2d 442, 447 (1985). I respectfully suggest that
Vermonters, acting through their elected representatives, could reach a
similar conclusion. Therefore, to the extent relevant, fostering public
trust in the judiciary clearly mandates application of the civil
suspension statute as it was written, without the judicial gloss imposed by
the majority.

Turning to its final reason, the majority suggests that application of
the exclusionary rule is necessary to "assure that unlawful police conduct
is not encouraged." Ante, at 15. Expanding on this point, the majority
explains that if the exclusionary rule were not available in civil
suspension proceedings, law enforcement officers would have an incentive to
make investigatory stops "based on hunches or stereotypical beliefs or for
any or no reason whatsoever." Ante, at 15. The police stops in these
cases and in the two pending appeals that raise similar issues, State v.
Nickerson, Docket No. 98-530 and State v. Rash, Docket No. 98-531, do not
provide even a remote basis for the majority's alarm. Indeed, in none of
the cases is there even a suggestion that the vehicles were stopped on the
basis of "stereotypical beliefs" or "hunches." See Nickerson, (defendant,
stopped at border after Canadian customs officials observed him to be
visibly intoxicated, revealed BAC of .204); Rash (defendant, stopped
after citizen informant reported defendant driving intoxicated and
described vehicle, tested for BAC of .160). Nor is there an allegation
that the defendants were unlucky intoxicated drivers caught in a web of
"random stops" that also netted sober drivers. Since in each of the four
cases considered the defendant had a BAC of .08 or greater at the time of
the stop, one would have to suspend the laws of probability to believe --
as the majority apparently does -- that Vermont law enforcement officers
are making investigatory stops of drivers "for any or no reason
whatsoever." Ante, at 15.

Before suggesting that the exclusionary rule must be applied in this
context "'to avoid the taint of partnership in official lawlessness,'"
some showing of the "lawlessness" ought to be required. Ante, at 15
(quoting Lopez-Mendoza, 468 U.S. at 1060-61 (Marshall, J., dissenting)).
There is no evidence of it in these cases and, in my view, it is a great
disservice to law enforcement officials, and the public they serve, to
conclude -- as the majority's exclusionary rationale must -- that the
potential risk of unlawful police conduct in Vermont far exceeds the
actual risk of drunk driving. The majority disclaims that its holding has
anything "to do with the likelihood of whether police officers will act in
good faith or how often they will make illegal stops." Ante, at 16. The
majority's expressed concern over police "'lawlessness,'" supra, at 15,

and "unlawful government intrusions" supra, at 16, suggests otherwise.

Finally, I take exception to the majority's description of my
rationale as one which would allow police "to briefly detain and question
motorists for any or no reason at all." Ante, at 16 n. 2. I assume the
majority does not intend to replace accuracy with hyperbole, so I
respectfully emphasize that I do not believe police can detain and
question motorists for any or no reason at all. Systematic stops without
particularized suspicion must adhere to the requirements of State v.
Record, 150 Vt. 84, 89, 548 A.2d 422, 425 (1988) (upholding sobriety
checkpoints that satisfy minimal guidelines).

It is conceivable, of course, that law enforcement officers undeterred
by the exclusion of evidence in a criminal DUI proceeding would engage in
a pattern of stopping motorists "for any or no reason at all" in the hope
of securing evidence of intoxication for use in a civil suspension
hearing. But there is nothing in the record to support the majority's
claim that affirmance of the judgments would lead to this result, or
"strip Vermonters of their constitutional right to be free from
unwarranted governmental intrusion into their private affairs." Ante, at 5
n.1. The majority does not cite a single instance, much less any pattern,
of unwarranted police intrusion into Vermonters' private affairs (unless
the majority is suggesting that the officer's mistaken judgment concerning
the requisite number of rear license plate lights on defendant Robert
Lussier's vehicle was such an invasion). Absent such a showing of abuse,
application of the exclusionary rule in this context is unsupported by
precedent, logic, or experience.

This Court has often stressed that the purpose of civil suspension is
to protect "public safety by quickly removing potentially dangerous
drivers from the roads," Strong, 158 Vt. at 61, 605 A.2d at 513, that it
is intended as a "remedial," not a criminal sanction, id. at 60, 605 A.2d
at 513, and consequently that due process rights which traditionally apply
in a criminal proceeding may be superseded in the civil context in the
interest of saving lives. See id. at 62, 605 A.2d at 614 (license
suspension is not criminal punishment invoking double jeopardy protection);
Shaw v. District Court, 152 Vt. 1, 7, 563 A. 2sd 636, 640 (1989) (no right
to jury trial in civil

suspension proceeding). The protection of individual privacy rights may
well compel the suppression of otherwise reliable evidence in a criminal
prosecution, even at the cost of insulating a guilty driver from criminal
sanctions. The protection of privacy does not, however, require insulating
intoxicated drivers from civil suspension of their driving privileges where
the State has relevant and reliable evidence of intoxication. Or so, at
the very least, the Legislature could reasonably have concluded.

For the foregoing reasons, therefore, I would affirm the judgments. I
am authorized to state that Justice Skoglund joins in this dissent.

_______________________________________
Chief Justice

------------------------------------------------------------------------------
Footnotes

FN1. Former § 1205(g) has since been redesignated as § 1205(h).

------------------------------------------------------------------------------
Dissenting

No. 98-394 & 99-017

State of Vermont Supreme Court

On Appeal from
v.
District Court of Vermont,
Unit No. 3, Caledonia Circuit

Steven R. Lussier, Jr. April Term, 1999

State of Vermont

Robert R. Lussier

Mary Miles Teachout, J. (98-394)
Alan W. Cook, J. (99-017)

Dale O. Gray, Caledonia County State's Attorney, and Alan M. Singer
and Robert Butterfield, Deputy State's Attorneys, St. Johnsbury, for
Plaintiff-Appellee.

David C. Sleigh of Sleigh & Williams, St. Johnsbury, for
Defendants-Appellants.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

SKOGLUND, J., dissenting. My disagreement with the majority begins
with its expansion of the civil suspension process based on an unsupported
interpretation of legislative intent. Viewed dispassionately, 23 V.S.A. §
1205(h) sets forth a comparatively clear and concise set of issues to be
considered in a civil suspension proceeding. None of them concerns the
legality of the motor-

vehicle stop preceding the officer's request that a driver submit to a
blood alcohol test. Nor does the "reasonable grounds" language of §
1205(h)(1) support the majority's conclusion that the Legislature must
have "assumed" the legality of the stop. Ante, at 4. I must respectfully
dissent.

Section § 1205(h) provides that the issues to be considered in a
summary suspension proceeding "shall be limited" to five. On this, there
is no dispute. The majority begins its analysis, however, by observing
that it finds "[n]othing in the language of § 1205 or the purpose behind
the statute" to suggest that the Legislature intended to preclude
motorists from challenging license suspensions based on the
constitutionality of the underlying stop. Ante, at 4 (emphasis added).
With this summary dismissal of the restrictive language of §1205(h) and a
puzzling assumption of legislative purpose at the threshold, the majority
takes its first misstep.

The principal objective of statutory interpretation is to discern and
implement the Legislature's intent, and the primary source of that intent
is to be found in the plain and ordinary meaning of the words chosen. See
In re P.S., 167 Vt. 63, 70, 702 A.2d 98, 102 (1997). As noted, the
issues at a civil suspension hearing are limited to five: (1) whether the
officer had reasonable grounds to believe the person was operating a
vehicle in violation of section 1201 of this title, (FN1) (2) whether at
the time of the request for the evidentiary test the officer informed the
person of the person's rights and the consequences of taking and refusing
the test, (3) whether the person refused to permit the test, (4) whether
the test was taken and the results indicated that the person's alcohol
concentration was 0.08 or more at the time of operation and whether the
testing methods were valid and reliable and whether the test results were
accurate and accurately evaluated, and (5) whether the

statutory requirements for consenting to an evidentiary test were met. 23
V.S.A. § 1205(h)(1)-(5).

The first issue to be determined in a civil suspension proceeding is
whether the law enforcement officer "had reasonable grounds to believe the
person was operating, attempting to operate or in actual physical control
of a vehicle in violation of section 1201 of this title." Id. §
1205(h)(1). The majority reads this section to require reasonable grounds
to suspect a DWI violation before an officer can effect a motor vehicle
stop. This is the second misstep, as I will explain below. And, in
light of this interpretation of subsection (h)(1), the majority concludes
that "the Legislature assumed that a constitutional stop would be a
necessary predicate to finding 'reasonable grounds' for suspicion of DUI."
Ante, at 4. Because I don't believe the majority's reading of subsection
(h)(1) is correct, I also do not believe the assumptions attributed to the
Legislature are valid.

Viewed on its own terms and in context, the only plausible meaning of
the "reasonable grounds" requirement is that the officer must have formed
a reasonable basis to request a blood alcohol test from the person under
investigation, that is, were there indicia of intoxication that would
support a request that the person submit to an evidentiary test? Indeed,
this has been the Court's understanding since at least State v. District
Court, 129 Vt. 212, 274 A.2d 685 (1971). There the Court construed an
earlier version of § 1205 which provided, in terms nearly identical to the
current statute, for a "summary hearing [to] take evidence relating to the
reasonableness of the officer's belief that the respondent was operating a
vehicle under the influence of intoxicating liquor or drugs." Id. at
214, 274 A.2d at 686. Justice Barney, writing for the Court, explained the
purpose of this requirement as follows:

[T]he legislature has taken steps to protect operators from
arbitrary, capricious or otherwise unreasonable demands that a
test be taken. This is accomplished by its requirement that it
be adjudicatively determined whether or not the belief of the

officer, from which the request to test is generated, is a
reasonable one . . . . The duty of the court is to evaluate the
facts and circumstances presented as persuading the officer that
he should request the respondent to take a test.

Id. at 214-215, 274 A.2d at 686-87 (emphasis added). Thus, the plain
meaning of the "reasonableness" requirement is, and has been, clearly
understood for nearly thirty years as referring to the request for an
evidentiary test.

The current civil suspension statute retains the relatively simple and
straightforward requirement that an officer form a reasonable basis to
believe that the driver was under the influence of alcohol or drugs before
requesting an evidentiary test. See 23 V.S.A. § 1205(h)(1). The
majority's construction replaces this limited prerequisite, substituting a
more expansive inquiry into whether the officer had reasonable grounds to
believe the person was committing a crime, a motor vehicle violation, or
some other conduct that would justify the initial detention. This new test
is created, despite the absence of any language in the statute referring
to the validity of the initial stop or detention. Expanding the statute
in this manner contravenes fundamental principles of statutory
construction. See State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946
(1996) (Court must not "read into a statute something which is not there
unless it is necessary to make the statute effective").

The statutory context of § 1205(h)(1) lends additional support to the
conclusion that it serves merely as a predicate for requesting an
evidentiary test. As noted, the question of whether the officer had
reasonable grounds to believe the driver was DUI is the first of five
issues to be determined in a civil suspension proceeding. The remaining
issues to be determined are whether the officer informed the person of his
or her rights and the consequences of taking and refusing the test, whether
the person refused to permit the test, whether the test was taken and
indicated a BAC of .08 or

higher, whether the test results were accurate and accurately evaluated,
and whether the requirements of our implied consent law, see 23 V.S.A.
§1202, were satisfied. In short, beginning with the officer's basis (or
"reasonable grounds") for requesting blood alcohol testing, every
subsequent issue set forth in § 1205(h) relates to the administration of
the test.

The Legislature's intent to limit the reasonableness inquiry to the
basis of the officer's request for blood alcohol testing is evident, as
well, from the summary and informal nature of the proceeding. The
statute expressly provides that civil suspension hearings "shall be summary
proceedings." 23 V.S.A. § 1205(j); see also State v. Stearns, 159 Vt. 266,
271, 617 A.2d 140, 142 (1992) ("The Vermont civil suspension system is
intended to work in a speedy and summary fashion."). To this end, the
rules for civil suspension proceedings provide for procedural informality,
and the rules of evidence generally do not apply. See D.C.C.R. 80.5(f);
Stearns, 159 Vt. at 271, 617 A.2d at 142-43. The Legislature has
specifically provided that affidavits of law enforcement officers and
chemists are admissible to prove the State's case. See 23 V.S.A. §
1205(j). The statute further specifies that a law enforcement officer's
affidavit "shall be in a standardized form for use throughout the state
and shall be sufficient if it contains the following statements." Id. §
1205(b) (emphasis added). The section then sets forth seven separate
criteria, including the certification of the officer, the results of the
test and the time and date it was taken, and a statement indicating that
the officer "had reasonable grounds to believe the person was operating,
attempting to operate or in actual physical control of a vehicle in
violation of section 1201." Id. § 1205(b)(3). Again the statutory
requirements focus primarily upon the qualifications to administer an
appropriate evidentiary test.

As this Court explained in Stearns, "[t]he system is structured so
that the State can prove its

case without taking the arresting officer from law enforcement duties to
testify." 159 Vt. at 271, 17 A.2d at 143. This will no longer be the
case. Opening the civil hearing to constitutional challenges to the
underlying motor vehicle stop will effectively preclude the State from
relying on an officer's affidavit. What once was sufficient under
§1205(h) will no longer suffice. The State will be compelled to call the
officer as a witness, and the "summary proceedings" contemplated by the
statute will only exist in memory. Indeed, absent any requirement that
defendants disclose the issues or testimony they intend to present at the
hearing, the State may be compelled to keep officers on stand-by status in
case there is a challenge to the validity of the underlying stop. See
D.C.C.R. 80.5(e); Stearns, 159 Vt. at 271 n.2, 617 A.2d at 143 n.2. It is
difficult to imagine a result more at odds with the language and purpose
of the civil suspension statute.

In all but one of the cases from other jurisdictions relied upon by
the majority, the decisions were based upon operative language that does
not appear in Vermont's civil suspension statute. Pooler v. MVD, 755 P.2d 701 (Or. 1988) is typical. The civil suspension hearing there was limited
to several issues, including whether "[t]he person, at the time the person
was requested to submit to a test . . . was under arrest for driving
while under the influence of intoxicants." Id. at 702. That
requirement, not found in our statute, formed the basis of the Oregon
court's decision. As the court explained: "[T]he arrest which is a
prerequisite to a lawful suspension . . . must be a valid arrest . . .
. If the arrest must be valid, it follows that the scope of the
administrative hearing before the hearing officer included the question of
the validity of the arrest." Id. at 702-703. Similar statutory language
formed the basis of the decisions in People v. Krueger, 567 N.E.2d 717,
722-23 (Ill. App. Ct. 1991) (holding that "under arrest" requirement of
civil suspension statute required finding of valid arrest); (Watford v.
Bureau of Motor Vehicles, 674 N.E.2d 776, 778 (Ohio Ct. App. 1996)

(construing "under arrest" provision of civil suspension statue to meant
that "a lawful arrest, including a constitutional stop, must take place");
and Gikas v. Zolin, 863 P.2d 745, 749 (Cal. 1993) (noting that "under
arrest" provision of civil suspension statutes means that "the underlying
arrest must have been lawful"). (FN2) The one exception cited by the
majority is Brownsberger v. MVD, 460 N.W.2d 449 (Iowa 1990). There,
however, the court's decision was based upon a specific statute permitting
a defendant to reopen a civil suspension when a court in a criminal action
rules that the arresting officer lacked reasonable grounds. The court
noted that the statute had effectively superseded an earlier decision
holding that the exclusionary rule did not apply in civil suspension
proceedings. See id. at 451. Thus, these cases are of little assistance
in our quest to understand the legislative intent of our civil suspension
statute.

With the majority's ruling, the summary civil procedure envisioned
by the Legislature will now be transformed into a full blown trial on
issues not appearing in the civil suspension statute.

It may be that there will cease to be value in pursuing a civil suspension.
In Stearns this Court rejected the defendant's claim that the State was
collaterally estopped from relitigating in the criminal case the court's
earlier ruling in the civil suspension hearing on the issue of defendant's
alleged refusal to take the test. See 159 Vt. at 272, 617 A.2d at 143. We
suggested that, in civil suspension hearings, it was the State's decision
whether to risk that a defendant's license would not be suspended because
an officer's affidavit could not adequately convince the court in the face
of defendant's live testimony on an issue. Id. at 271-72, 617 A.2d at 143.
To hold otherwise, the Court observed, would force the State "to try the
criminal case, with live witnesses, in the civil suspension proceeding,"
which would "nullify the summary suspension proceeding that the
Legislature enacted." Id. How does that analysis of our civil suspension
statute comport with today's ruling?

For all of the foregoing reasons, therefore, I am unpersuaded that
the civil suspension statute permitted defendants to challenge the
validity of the underlying motor vehicle stops. I am equally
unpersuaded, for the reasons discussed in the dissenting opinion of the
Chief Justice, of any overriding constitutional imperative to read such a
requirement into the statute. Accordingly, I join in his dissent. I
would affirm the judgments. I am authorized to state that the Chief
Justice joins in this dissent.

-------------------------

Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. 28 V.S.A. § 1201 prohibits driving under the influence of
intoxicating liquor or other substances that impair the ability to drive
safely.

FN2. Even these decisions have not gone unchallenged. In Fishbein v.
Kozlowski, 743 A.2d 1110 (Conn. 1999), the Connecticut Supreme Court
recently rejected the argument that the "probable cause to arrest" element
of its civil suspension statute incorporated a requirement that the
initial investigative stop of the driver be lawful. As the court
explained:

We accordingly conclude . . . that the legislature did not intend
that the lack of a reasonable and articulable suspicion to
justify an initial investigative stop would be a basis for
overturning the commissioner's decision if the commissioner finds
that, subsequent to the stop, "the police officer [had] probable
cause to arrest the person for operating a vehicle under the
influence of intoxicating liquor" . . . Any interpretation
that prevented the commissioner from suspending the license of a
person who was stopped without a reasonable and articulable
suspicion, but whom the police subsequently had probable cause to
arrest for driving while intoxicated, would undermine the primary
purpose of the statute, which is "to protect the public by
removing potentially dangerous drivers from the state's roadways
with all dispatch compatible with due process." Nothing in the
legislative history . . . suggests a contrary conclusion.

Id. at 1116-1117 (citations omitted).

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.